Panel affirms denial of motion to suppress based on pat-down search; dissent makes good points

United States v. Hammond, 2018 WL 2208523 (May 15, 2018) (CO): This decision is notable for its dissent which is detailed below. The panel was asked to decide whether police officers, who frisked Hammond for weapons, had reasonable suspicion to believe that he was armed and dangerous. It holds it is reasonable for officers to “perform a brief, non-invasive search to ensure their own safety and that of the surrounding community” when the person searched is a (1) known gang member (2) who was a suspect in a prior weapons possession case and who had (3) recently been arrested in connection with another weapons case, is pulled over (4) while riding in a car that had previously been seized in connection with the individual’s prior arrest, (5) while wearing colors which loudly display his affiliation with a gang involved in an ongoing feud. The panel noted that a criminal record, let alone arrests or suspected gang affiliation, is not sufficient to create reasonable suspicion of anything. The circumstances of the stop “must interact” with these other factors before they become “critically relevant” to the Terry-stop analysis.

Judge Phillips dissented. He said before approving a pat down search, the court must be sure there is “objective” reasonable suspicion that the accused is armed and dangerous. He agreed there was objective reasonable suspicion that Hammond was armed but that suspicion was lacking as to his dangerousness. He pointed out that “danger is specific to the moment before the police pat down a person.” He also listed four facts that weighed against finding Hammond dangerous: (1) he was a passenger in a car stopped for a burned-out taillight; (2) the police did not treat the female driver as a threat to their safety; (3) Hammond was courteous, calm and compliant, not angry intoxicated or in any other “worrisome state” and (4) he voluntarily stood outside the car in a well-lit busy intersection, surrounded by commercial buildings, with the police department on the corner. Judge Phillips criticizes the majority for “collapsing armed and dangerous into one condition.” He predicts the government will use this opinion to “stress” that the court allowed a frisk “under all of the surrounding circumstances, not just those bearing on whether Hammond was armed.”